54 F. 410 -

54 F1d 410

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Case Text

410

'FEDERAL REPORTER,

vol. 54.

tional, would afford no ground fQr complaining of error in the decree' of the district court, and, if due toa mere inadvertence in drafting the decree, the error should have corrected by a motion in this, court before the mandate issued. The question is not open to discussion upon the present appeal. We affirm the decree of the district court, with costs to the appellee, and direct that the cause be remanded to the district court for further proceedings to said decree.THE YOUNG AMERICA. ' THE YOUNG AMERIOA.
(District Oourt, S. D. New York. January 20, 1898.) . The wearing tron of a tug was broken and rough, and, coming In eon·tact with libelant's canal ooat;tt rippedotr three stern plllIlks; bUt, defendant's evidence showing that the bolt fasteIililgs of the canal boat's, stertl. planks were mostly rusted otr, held, that such defect contributed equally to t,he loss, and the damages should be divided.WEARING IRON-WEAK BOA.T.

In Admiralty. Libel by James Campbell against the steam. tug Young America for collision. Decree for divided damages. Carpenter & Mosher, for libelant. Robinson, Biddle & Ward, for claimant.

BROWN, District Judge. Whatever may have tieen the character of the mark left upon the side of the libelant's canal boat, the fact is proved that the rake iron, which ran perpendicularly down the e;x:treme after end of the planking on the side, was torn up, broken, and left hanging and swinging from the uppermost fastening. This fact seems to me to prove conclusively that there was some defect in the claimant's tugboat, probably in the rupture and projection of her wearing iron, which distinguishes this case altogether from those of contacts in the usual course of navigation, and shows that the damage in this case was caused by the rough impact of the tug's broken wearing iron. Had the stern planks of the libelant's boat been rotten, their edges, across which this projecting iron passed, would naturally have given way, without other damage. The Itern planks, however, were ripped off by the impact. But from the mark left upon the side of the boat, even to the depth sworn to by the libelant's witnesses, it would not seem that there was a contact of sufficient depth, breadth or force to have carried away those three stern planks by merely passing across the edge of one of them, had they been fastened securely across the stern. The evidence of the claimant in that respect is very direct and positive that most of those bolt fastenings were rusted off between the planks and the timbers inside. I must regard such a proved defect as a cause equally contributing to the loss; and the damages must, therefore, be divided. The Syracuse, 18 Fed. Rep. 828; The Atalanta, 34 Fed. Rep. 918; The N. B. Starbuck, 29 Fed. Rep. 797. Decree accordingly.

It 'a scbooner, having the right of way, held her course, It Is all an approachIng steamer had a right to require, and whether she had a proper lookout or not is immaterial The Fannie, U Wall 243, followed.

S. SAME-WEIGHT OF EVIDENCE. '.rIle rule Is that the testimony of omcers and witnesses as to what wall actually done on board their own Yessel Is entitled to greater weight thaD

that of witnesses on other boats, wbo judge or form oplnlons merely from <.Ibservatton. The Hope, 4 Fed. Rep. 89, fonowed.

8. SAME-STEAM AND SAIL-DUTY TO STOP AND REVERSE.

Wbere a steamer and a schooner are hnlf a mile apart, and the master of the steamer sees there Is danger of collision, it Is b1s duty to slacken her speed., or stop and reverse, if necessary.

4.

SAME-ERROR IN EXTREMIS.

Where a vessel, by her own negligence, or the breach of a statutory rule, places another in great peril, the latter will not be beld gnllty of negligencE' because at the last mlnuto she did something that contributed to the colllslon, or omitted to do something that Inight have avoided it.

In Admiralty. Cross suits for damages by collision..

H. D. Hotchkiss, for libelants. Samuel Park, for claimants. TOWNSEND, District Judge. These are cross libels for damages caused by a collision. There is no disputed question of law. There is the usual conflict of testimony as to the material questions of fact. It is agreed that the collision occurred in the lower bay of New York, in the main channel, between Swinburn island and the bell buoy at the head of the swash channel; that the four-masted schooner Randall struck the fishing steamer Havana; that the time of the collision was December 21, 1891, about half past 3 in the afternoon; that the day was clear; that the wind was blowing about 40 miles an hour from the northwest; and that there was a strong ebb tide. When the vessels were about three miles apart, the Havana was coming up the bay, and was close to the bell buoy, and the Randall was going down the bay, was about in the center of the channel, and abreast of Swinburn island, and was headed S. by W. There were no vessels or shoals to interfere at any time with the free movement of either vessel. The claim of the libelants, the owners of the steamer Havana, is as follows: When the vessels were three miles apart, they were virtually coming head on; the course of the steamer being N. by E. The courses of the vessels remained unchanged until they got within about a mile of each other, when the steamer, having reached